Humanitarian safe passages still a chimera in the EU

On March 7th, the Court of Justice of the European Union (CJEU) ruled in the case of X and X v État belge (Case C-638/16 PPU) that Member States are not required, under the Visa Code Regulation (the “Visa Code”) and European Union (EU) law in general, to grant a humanitarian visa to persons who wish to enter their territory in order to apply for asylum.[1]

The judgment was awaited by many professionals and non-professionals involved in the field of international protection. It was of huge importance as the notion of “humanitarian grounds” or “international obligations” currently can be examined only under the visa procedure envisioned in the Visa Code. There is no other common EU procedure established for the lodging and processing of humanitarian visa applications. Given Advocate General Mengozzi’s opinion on the case[2], which ran contrary to the CJEU judgment discussed here, there was hope that Member States can be deemed obliged to issue humanitarian visas to persons who can demonstrate a prima facie asylum case within the current EU law framework. This would have made the right to asylum, envisioned in the Charter of Fundamental Rights of the European Union (the Charter), practical and effective, thus saving many people from the hazardous irregular journeys through borders and seas.

Unfortunately, the CJEU judgment crashed these hopes. It is worth mentioning, that the judgment was delivered against the backdrop of difficult negotiations between the European Parliament, the European Commission and the European Council on provisions for humanitarian visas in the proposed recast Visa Code. The judgment was also delivered in a context of rising right-wing and ultra-right wing parties across Europe and a widespread anti-migration sentiment. The CJEU had to rule on the case in a European environment completely enchanted by higher walls, tighter border controls and anti-EU, pro-sovereignty tensions.

The case

On 12 October 2016, a Syrian couple and their three young, minor children, living in Aleppo, submitted applications for humanitarian visas at the Belgian embassy in Beirut, Lebanon. The purpose of the applications was to obtain visas with limited territorial validity, on the basis of the EU Visa Code[3], which would enable them to leave the besieged city of Aleppo and apply for asylum in Belgium. The applicants emphasized, in particular, the deteriorating security situation in Syria in general, and in Aleppo especially, and the fact that, being Orthodox Christians, they were at risk of persecution on account of their religious beliefs.

On 18 October 2016, the Office des étrangers (Immigration Office, Belgium) rejected the applications. According to the Office des étrangers, by seeking to obtain a visa with limited territorial validity in order to apply for asylum in Belgium, the Syrian family in question clearly intended to stay more than 90 days in Belgium, which is contrary to the EU Visa Code.

The Syrian family challenged the refusal before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium). They submitted that the Charter and the European Convention of Human Rights (ECHR) impose a positive obligation on the Member States to guarantee the right to asylum. They also claimed that the granting of international protection is the only way to avoid a violation of their right under the Charter and the ECHR not to be subjected to torture and inhuman or degrading treatment or punishment. In light of these circumstances, the Conseil du contentieux des étrangers decided, as a matter of urgency, to refer the matter to the CJEU.

In its judgment the CJEU ruled that the Visa Code establishes the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days in any 180-day period. The Syrian family, however, submitted applications for visas on humanitarian grounds with a view of applying for asylum in Belgium and, accordingly, were intending to stay more than 90 days. Therefore, the CJEU ruled that even if those applications were formally submitted on the basis of the Visa Code, they fell outside its scope. Since the situation was not governed by EU law (fell out of the Visa Code scope), the provisions of the Charter did not apply. The CJEU further ruled that the application of the Syrian family fell solely within the scope of national law and there was no uniform European obligation for the issuing by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds. Thus, the matter falls solely under the sovereign competence of the Member States and they are free to refuse any such request.

The CJEU further ruled that any other judgment on the matter would undermine the general structure of the Dublin system.

Thoughts on the judgment

Yet again, after this judgment, we are faced even more with the paradox of the EU and in that sense – international asylum law. Seeking asylum is a recognized right but it is strangely preconditioned by an obstacle which makes it ineffective and non-practical – only those who somehow, in the absence of a legal way, manage to get to the territory of a Member State (or any other desired safe state) can benefit from it. As Advocate General Mengozzi recalled in his opinion, without a visa, asylum seekers would cross borders irregularly risking their lives.

This is even more so given that there is currently no EU procedure for issuing humanitarian visas per se. The notion of such could only have been discussed under the “humanitarian grounds” or “international obligations” provisions of the Visa Code. Not anymore either, however. The CJEU ruling means that asylum seekers by large would continue to risk their lives in trying to benefit from the right of asylum until a recast of the Visa Code is adopted that allows humanitarian visas. In fact, in 2014 the European Commission announced its proposal for such.[4] The proposal, however, focuses mainly on financial and security issues. Currently, there are difficult ongoing negotiations on the topic between the European Commission, the European Parliament and the European Council. The European Commission’s proposal does not contain any changes to the current humanitarian visa framework. The European Parliament, however, advocates strongly in favor of European humanitarian visas for which persons seeking international protection could apply at any consulate or embassy of a Member State.

A different CJEU judgment would have been a solid support for the European Parliament’s efforts to include a long-term humanitarian visa provision in the recast of the Visa Code.

For now we have to hope that the European Parliament would somehow manage on its own to accumulate enough political support for the explicit inclusion of humanitarian visas regulation in the recast of the Visa Code, as the CJEU seems unready to interpret EU law in a progressive manner in the current political context. This is evident from its ruling in the abovementioned case, that allowing third-country nationals to lodge applications for visas on the basis of the Visa Code in order to apply for international protection in the Member State to which they will travel would undermine the general structure of the Dublin system. The CJEU seems more concerned with a system that has largely already failed, than to guarantee effective access to the right to asylum of the applicants through progressive interpretation of the Visa Code regulations.

A different CJEU judgment would have had possible implications on asylum seekers detention across the Member States, explicitly permitted under the provisions of the recently adopted Directive 2013/33/EU.[5] Two of the grounds on which Member States are permitted to detain asylum seekers under the Directive 2013/33/EU are: to verify identity or nationality; and to determine the elements on which the application is based. A procedure for examination of an application for a humanitarian visa would have given the Member State concerned the necessary information which could limit asylum detention on these two grounds.

Actually, a different judgment of the CJEU would not have meant that the applicants should be granted asylum, nor even that they should be granted a visa. It would have merely meant that their applications would be examined under the Visa Code and they would be afforded the protection of the Charter. The Belgian government would have been obliged to give reasons in substance for a possible refusal. Furthermore, a different CJEU judgment would have reminded all EU Member States, as Advocate General Mengozzi puts it, of their responsibilities “to prevent manifest infringements of the absolute rights of persons seeking international protection before it is too late [for these persons]”. These responsibilities, according to Advocate General Mengozzi, stem from “the ‘universal values of the inviolable and inalienable rights of the human person’ on which European construction is founded”.

A different CJEU judgment would have pressed Member States to live up to the expectations and responsibilities the EU project was built upon, not only in their internal affairs but the external ones, too.

Or, it would have made the union implode.

The author is a Law graduate from the Sofia University “St. Kliment Ohridski”. He has been part of the “Center for Legal Aid – Voice in Bulgaria” since 2012. He has experience as a volunteer legal practitioner providing pro bono legal consultations to asylum seekers in Bulgaria. He also works in the field of anti-discrimination law as part of the legal team of the Bulgarian Helsinki Committee. Out of the office he has been involved in voluntary initiatives helping refugees and migrants, particularly by being one of the founders of the biggest grassroots civil initiative in the field – “Friends of the Refugees”.